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Thursday, March 18, 2010
Teams, Deems, and an Honest-to-God Constitutional Crisis in the Making

The fundamental question is, will the President and the US House of Representatives try to make a controversial, far-reaching, game-changing bill into law without the House actually having voted on it. Unthinkable? Not in 2010.


Today and tomorrow are my favorite days in sports: the first round of the NCAA Men's basketball tournament. I'm less fond of the popular term "March Madness" than I am of the madness itself, but it will do.

My favorite college team, BYU, is playing this morning in the game that is scheduled to be the first to tip off in the whole tournament (not counting the 64/65 play-in game). Two other games tip off shortly thereafter, so it is possible but not certain that my Cougars will be either the first team to advance, or the first to be eliminated. I'm predicting the former, in the hope that a better team leads to better results than in every similar opportunity in the last 17 years. But I love the tournament no matter who is playing. I'm actually taking some time off work this morning to watch the game at a friend's home on a big screen.

Deems? What Is Deems?

Meanwhile, there is other madness afoot. In a devil-may-care attempt to get a health care takeover bill to President Obama's desk, the House leadership is cooking up a scheme to pretend they passed the Senate bill without actually taking a vote. Apparently, there's a House rule which allows that, though, presumably, in a rational world, it would be trumped by the United States Constitution itself. That ancient document seems to think that, to become law, bills must, among other things, be passed by both houses of Congress. (Okay, I know, I'm stretching the definition of ancient. But it's a good deal older than I am.)

Here's the situation in a nutshell.

The House passed a health care takeover bill that was dead on arrival at the Senate. The Senate passed its own bill. After Republican Scott Brown's subsequent victory in the Massachusetts election, the Senate doesn't have the votes to do much of anything further, so it's the Senate bill or no bill at all, at this point. Ordinarily, two different bills would be reconciled by a conference committee of members of both houses, and identical bills would go back to both houses for a vote, without amendment. But the Senate no longer has the votes to bring such a conference bill to a vote. (The magic number is 60.) So, again, it's the Senate bill, or no bill at all.

President Obama apparently likes the Senate bill, but a lot of House Democrats don't. Apparently, the House doesn't have the votes to pass it as-is. If the House passed the very same bill the Senate passed, there would be no need for a conference bill, and nothing would have to go back to the Senate. It would simply go to the President for signature or veto, and you can bet it would get a signature.

Rather than changing the Senate bill itself, and as an alternative to amending it, which would then require another Senate vote, the House can put amendments into a separate bill. That bill will never pass the Senate, so the amendments would be pie in the sky, but House leadership is trying to sell its Democrats on the idea anyway. And you thought they think we're stupid. I wonder if they'll hoodwink any Democrats long enough to get their vote.

The explanation offered is that House Democrats want to be able to say they didn't actually vote for this very unpopular health care takeover bill. That's spineless and self-deceiving at best, but the motive here really doesn't matter at all.

As the "Slaughter" scenario goes, the House would pass the bill of amendments to the Senate bill, but not vote on the Senate bill itself. Having passed the bill of amendments to the unpassed Senate bill, they would "deem" the original bill passed, too -- without a vote, in case you hadn't noticed -- and send it to the President for his signature. The President has been making noises which suggest that he supports this caper; it's possible that the idea originated in the White House itself. He's also been saying publicly that there should be a direct vote on the Senate bill itself. His actions may soon show us which of his words he really meant.

It's time for an analogy, and today it really has to be a college basketball analogy.

"Deeming" Tournament Results

Let us suppose that the first NCAA game to tip off, BYU (a seventh seed) vs. Florida (a tenth seed), proves to be a close, hard-fought game. With two minutes remaining in the game there in Oklahoma City, and with BYU having just pushed out to a five-point lead, the referees stop the game. An NCAA official with a microphone in her hand, and looking a lot like basketball's version of House Speaker Nancy Pelosi, announces that by rule the NCAA is deeming Florida to have won the game, because at this point it doesn't think Florida will win in the conventional way, and it's critically important that Florida advance, for the good of the tournament and the sport itself. (Bigger state, bigger revenues, perhaps.) Now, she says, it's time for BYU and Florida to clear the floor and the sideline, so the teams playing in the next game can warm up.

Imagine the uproar, the scandal, the lawsuit, even the potential for a riot there and then. It's unthinkable, isn't it? And it would tell us unmistakably that NCAA officials care about something a great deal more than they care about the game itself, the players, the competition, the rules. This would rock the NCAA and the sport itself for years to come.

But compared to what the Democrats in Washington are cooking up, to "deem" the health care takeover passed without actually voting on it, this basketball caper would be absolutely trivial.

A Constitutional Crisis

The Democrats in Washington are so determined to take over one-sixth of the US economy and extend federal power literally into matters of health -- of life and death -- for every American that they are willing to violate the Constitution in fundamental ways to do it. If they thought this was so important and were pushing it through in the proper ways, that would be one thing. But when they are willing to destroy everything in their path, especially the Constitution, they tell us unmistakably that they are tyrants at heart. Their power means more to them than the Constitution itself. And if they don't care about the Constitution, you can bet money that they don't care about our freedom, either.

If they "deem" the legislation passed, and the President signs it, we have a constitutional crisis -- a real one, not just hype for nightly news headlines. I don't throw that phrase around lightly. Maybe the Supreme Court would overturn the illegitimate law; maybe they wouldn't. I don't know of any case law either way on the House's rule about "deeming," but on the face of it, Article I, Section 7, Clause 2 (the so-called Presentment Clause) would seem to exclude the practice, even if the Constitution says elsewhere that the House makes its own rules. The Court over the years has been fairly willing to quash attempts to work around "presentment" in various ways. Or they might decide not to tamper with the legislative branch in that way; there is some precedent for such reluctance, too.

What happens after that, either way? I don't know.

I'll say this much. If the President signs the health care takeover into law, knowing that it hasn't really passed the House, he will deserve to be impeached -- and I don't say that lightly, either. If the Court overturns the law, and the President defies them in any degree, he will doubly deserve to be impeached. I don't think it will happen, but he'll deserve it.

I don't remember ever seeing a major question on Capitol Hill that so clearly will indicate, for each member of the House of Representatives, whether he or she still reveres the US Constitution at least a little bit, or not. The results are already in where Speaker Pelosi is concerned -- and, no, impeachment is not an option for a member of Congress. Only the House itself could expel her, or the voters in her district defeat her in November.

What to Do Now?

I'm hearing the vote will be on Sunday. What can we do in the meantime? Besides pray, I mean? If your House representative is a firm nay, call or e-mail to thank him or her. If said representative is a yea or undecided, call or e-mail and vent a little -- intelligently and civilly, to be sure. It's reasonable to wonder how much that contact will matter on this issue, but it's something, at least, and it might matter.

Beyond that, we'll have to see what happens. Even if things go well this weekend for the Constitution and the rule of law generally, there is a ominous consideration for the future, of which more on another day.

David Rodeback comments (3/19/2010):

The House vote will be Sunday, we're told, with a vote on another measure ready to go to interrupt the health care takeover vote, if something goes wrong in the middle, like a nay vote from someone expected to vote yea. That way, they'll have some extra time to twist arms, threaten, bribe, etc. Using a second vote that way is not especially unusual, I'm told.

There's a lot in the news about all this, of course, and the stories are morphing faster than my NCAA bracket. Here's a selection of stories I found interesting last night and today:

  • A good Bloomberg story describes some of the constitutional issues that could come into play, if the House tries to "deem" the Senate bill passed without actually voting on it.
  • Utah Senator Orrin Hatch says that Senate passage of the bill of amendments isn't a foregone conclusion.
  • Peggy Noonan muses on President Obama going dodgy when asked serious questions in a Fox interview.
  • This Boston Herald piece has Democrat Congressman Stephen Lynch (one of Speaker Pelosi's whips) saying that "deeming" is a very bad idea.
  • Here are Associated Press and Washington Post articles on the House's amendments, which for some reason include making the US government the lender in all student loans.
  • Idaho, Virginia, and 35 other states are working on lawsuits against the federal government over provisions in the takeover bill, in case it passes.

Stay tuned.

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